In Threat to Private Colleges and Universities, NLRB Invites Comments on Faculty Unionization

Last week, the Democratic majority of the National Labor Relations Board invited interested parties to file amicus briefs addressing whether faculty members at private higher education institutions are eligible to unionize under the National Labor Relations Act (NLRA). Courts and the Board itself have long considered this issue resolved by a 1980 Supreme Court decision, NLRB v. Yeshiva University, which essentially barred the formation of full-time faculty unions at private institutions because their role in the shared governance of their institutions renders them “managers.” The Board’s recent invitation suggests that it plans to reconsider that position and may establish new criteria for applying the Yeshiva decision, paving the way for full-time faculty unions at private colleges and universities.

The context of the Board’s reconsideration is a nearly decade-old dispute between Point Park University and its full-time faculty, which started when the faculty voted overwhelmingly to form a collective bargaining unit in response to changes in the faculty handbook. The Board previously ruled that the faculty could form a union, but the D.C. Circuit Court of Appeals overruled that decision in 2006, asking the Board to explain how, under Yeshiva, “the faculty’s role at the University is not managerial.” One of the Board’s Regional Directors issued a supplemental decision explaining why the factors cited in Yeshiva would not apply to the Point Park faculty, leading the University to appeal that decision to the Board. Consistent with a series of recent challenges to other longstanding precedents, the Board’s Democratic majority now appears poised to attempt to use this appeal to sharply narrow Yeshiva’s limitation on faculty unions at private higher-education institutions.

The Board’s invitation for comment lists eight questions that largely mirror union-advocate criticisms of the Yeshiva decision. For instance, the invitation asked whether the Board should identify additional factors to help “correctly determine” whether faculty are managerial; whether private universities have made changes to their “models of decision making” since 1980 that should affect this determination; and whether the Board should draw distinctions between different job classifications within a faculty, “such as between professors, associate professors, assistant professors, and lecturers or between tenured and untenured faculty.” These questions appear aimed at creating a path for the Board to rule that faculty members at many private institutions are non-managerial employees, notwithstanding the Yeshiva decision.

The Board also set a relatively quick deadline for submitting amicus briefs on the questions raised in the invitation, as all argument and empirical and other evidence must be filed by July 6, 2012.